If you are already married to a U.S. citizen or permanent resident, you will apply for a marriage-based visa or green card. To be legally eligible, you and your spouse must show that you are:

• legally married (see Subsection a, below)

• in a bona fide marriage (see Subsection b, below)

• married to a U.S. citizen or lawful permanent resident (see Subsection c, below), and

• that neither you nor your spouse are married to anyone else (see Subsection d, below).

a. You Are Legally Married

To qualify for a marriage-based visa or green card, you must be legally married. A legal marriage is one that is officially recognized by the government in the country or state where you were married. This doesn’t mean that the president has to give you a personal seal of approval, but it usually means that an official record of your marriage has been made or can be obtained from some public office.

For this reason, domestic partnerships, in which a couple lives together but have not formalized their relationship, are not normally recognized for immigration purposes. However, if you have lived together in a place that recognizes common law marriages, you may be able to show that you met the requirements for your marriage to be legally recognized in that state or country. We do not cover common law situations in this book. If you are in this circumstance, you may want to consult an attorney.

You do not need to have been married in the United States for your marriage to be legal. It is perfectly acceptable if you marry in your home country or in the luxurious or adventurous travel destination of your choice. A variety of marriage procedures are also recognized, from church weddings to customary tribal practices. But note that both you and your spouse must have actually attended your wedding ceremony—so-called “proxy” marriages, where another person stands in for the bride or groom, are not recognized by the U.S. government unless the couple later consummates the marriage, meaning they have sexual relations.

If you have not yet married, make sure you are eligible to do so. The state or federal government where you intend to marry may have legal restrictions on who can marry. In the United States, each of the 50 states establishes its own marriage rules. For example, in some states you must be 18 years of age to marry, while in others you can marry younger if you can have the consent of your parents. If you and your spouse are related by blood, you’ll also need to do some research. You’ll find that all states prohibit marrying your sister or brother (sibling), half sibling, parent, grandparent, great grandparent, child, grandchild, great grandchild, aunt, uncle, niece, or nephew. But some states have additional prohibitions, such as marrying your first cousin.

RESOURCE

Need more on marriage requirements in the United States? See “Marriage Requirements, Procedures, and Ceremonies FAQ” on Nolo’s website at www.nolo.com.

Finally, you will need to provide a document to show you were legally married—most commonly, a marriage certificate issued by a legitimate governmental agency. A warning is in order here—a piece of paper from a church or a ship’s captain won’t, on its own, be enough to establish that you really are married. How you’ll go about providing the appropriate documentation will be covered in later chapters.

b. Your Marriage Is “Bona Fide”

A bona fide marriage is one in which the two people intend, from the start, to establish a life together as husband and wife. Although this can mean different things to different people, one thing is clear: A marriage entered into for the sole purpose of getting the immigrant a green card is not bona fide. (It’s called a “sham” or “fraudulent” marriage, and uncovering these relationships is a top USCIS priority.) When it comes to deciding whether a marriage is bona fide, USCIS is pretty strict.

EXAMPLE 1:

Yoko has been studying in the United States for four years. She would like to stay permanently, but can’t find an employer to sponsor her. A classmate tells her that for $5,000, he’ll marry her and take care of sponsoring her as an immigrant. If Yoko agrees, this will be a classic case of marriage fraud.

EXAMPLE 2:

Ermelinda and Joe are very close friends, who have occasionally had sexual relations, but are not now romantically involved. Ermelinda came to the United States on a student visa. However, because she dropped out of school, she no longer has any legal status or right to remain in the United States. When Ermelinda is threatened with deportation, Joe, a U.S. citizen, would like to help her. He figures he can live with her for a few years and then move on. Joe and Ermelinda get married. In the eyes of USCIS, this is marriage fraud.

EXAMPLE 3:

Viktor and Beth have been living together in the United States since not long after Viktor came here on a student visa, two years ago. They are in love and have talked about marriage, but were nagged by doubts as to whether their marriage would work out. But when Viktor’s student status ran out, he realized he’d either have to marry Beth or leave her and return to Russia. They marry and apply for his green card. This case is basically bona fide, since the relationship is real—but they will need to be careful in presenting it at the eventual green card interview. Viktor and Beth shouldn’t offer up information about their doubts about the marriage. If this subject does arise, they’ll emphasize their intention to make their marriage last.

c. You Married a Citizen or Permanent Resident of the United States

There are only two classes of people living in the United States who can obtain permanent residency or green cards for their spouses through the process described in this book: U.S. citizens and U.S. lawful permanent residents (green card holders). People with temporary rights to live in the United States (such as visas or work permits) cannot petition for their spouse to become a permanent resident.

i. Determining Whether Your Spouse Is a U.S. Citizen

Your spouse may have become a U.S. citizen in a variety of ways, including the following:

• being born in the United States or its territories

• becoming a citizen through application and testing (called naturalization), or

• acquiring or deriving citizenship through a family member. (Acquisition and derivation of citizenship are complex areas of the law.

In general, however, people may acquire citizenship by being born abroad to one or two U.S. citizen parents; they may derive citizenship if they become lawful permanent residents first and then their parents are or become U.S. citizens.)

RESOURCE

Want to learn more about acquired and derived citizenship? Visit Nolo’s website at www.nolo.com, see U.S. Immigration Made Easy, by Ilona Bray (Nolo), or ask your local nonprofit organization serving immigrants for more information.

Unlike some other countries, the United States does not require that its citizens carry any sort of national identity card. People who are U.S. citizens may have different types of documents that prove their status, such as a birth certificate, a U.S. passport, or a naturalization certificate. We’ll talk more in later chapters about how your spouse can obtain documentary proof of his or her citizenship that will satisfy the immigration authorities.

Sample U.S. Passport

ii. Determining Whether Your Spouse Is a U.S. Lawful Permanent Resident

A lawful permanent resident is someone with a legally obtained green card. This means that the person has a right to live in the United States permanently and may eventually become a U.S. citizen. The spouses of permanent residents are eligible for a green card.

You should know, however, that the fact that your spouse has a green card now doesn’t guarantee that he or she will have it forever. Permanent residence can be lost, for example, if the person makes his or her home outside the United States or commits certain crimes or other acts that cause USCIS to begin removal proceedings and order them deported. If your spouse lost his or her permanent residence, you would also lose your right to immigrate through your marriage.

CAUTION

A green card is not the same thing as a work permit card. If your spouse carries a card with the title Employment Authorization Document, he or she is not a permanent resident. The right to work in the United States is a temporary right, usually given to people who are waiting for a decision on an immigration application (including green card applications). You can’t get a green card through someone who only has permission to work here.

Sample U.S. Green Card

d. This Is Your and Your Spouse’s Only Marriage

Most people would love to leave their previous marriages far behind them. However, the U.S. government doesn’t make it that easy if you want to enter this country via a new marriage. Any previous marriages must have ended by legal means—such as death, divorce, or annulment—and you’ll have to present the official documents to prove it. Otherwise, USCIS will wonder whether your first marriage is still your active and real one—making your new marriage just a sham to get a green card. We’ll talk more in later chapters about how to obtain the appropriate documents to prove a prior marriage has ended.